Without Prejudice Meaning

Without Prejudice meaning Employment Law

What does “without prejudice” mean?

If your employer sends you a letter on a “without prejudice” basis, this means that the letter cannot usually be exhibited in a Tribunal or Court.

However, be warned, letters marked “without prejudice” can sometimes be exhibited in the Tribunal or Court as is evidenced in the authorities of –

  • Unilever v Proctor & Gamble [2001] 1 WLR 2436;
  • Woodward v Santander UK Plc (Formerly Abbey National Plc) UKEAT/0250/09/ZT;
  • BNP Paribas v Mezzotero [2004] IRLR 508;
  • Brunel University v Webster and Vaseghi [2007] EWCA Civ 482, Court of Appeal.

Thus, in order to get to the very great evil of discrimination (Jones v Tower Boot Co Ltd [1997] IRLR 168, CA) “without prejudice” conversations can be brought to the attention of the Tribunal if you can reasonably demonstrate that the matter is in the public interest insofar that the employer has sought to conceal an act of discrimination or victimization by seeking to have a conversation on a without prejudice basis.

Example: let’s say you raise a grievance for harassment and/or discrimination, and the employer choses to have a conversation on a without prejudice basis before investigating your grievances to see if it could pay you off to leave; it is very likely you could bring claims for unlawful victimization pursuant to s.27(1)(a)(2)(c)(d) & s.39(4)(d) EqA 2010 for having done a protected act in raising grievances.

Put shortly, in the authority of BNP Paribas v Mezzotero[2004] IRLR 508 the Court held that there should not be a ‘dispute’ capable of being settled on a without prejudice basis until such time as the employer refutes your grievances during a grievance meeting or grievance outcome letter.

Thus, if you have raised a written grievance, and the employer has not dealt with your grievances, but wants to invite you to attend a meeting on a without prejudice basis, then contact me, as you could raise a further grievance for unlawful victimization.

Can I have a “without prejudice” conversation before raising a formal grievance:

There are some websites which suggest that before raising a grievance, you seek to invite your employer to have a conversation on a without prejudice basis to see if the employer is amenable to reaching a settlement agreement.

It is my position that this is a fool hardy move. Put shortly, you are putting the cart before the horse.

Ask yourself this question – why would your employer offer to pay you any money to leave and/or reach a settlement agreement if you haven’t given them a reason to do so?

You can’t just do a Jerry Maguire and say “show me the money” unless you have given your employer a bloody good reason to pay you off!

Once you have outlined your grievances in writing, and moreover, outlined how your employer has breached your statutory rights in your letter of grievance, then you will have given your employer a reason to pay you to go and reach a settlement agreement!

To this end, personally I would not suggest proposing a settlement agreement until you are at the appeal stage, being the material time you lodge your appeal letter.

By appealing and rebutting the grievance outcome letter, and outlining how the grievance outcome letter is fundamentally misconceived, that would be the point in time to write to your employer and ask them to enter into meaningful discussions to reach a settlement agreement.

This position is supported in the authority of Cutts v Head[1984] Ch 290 at 306 where Oliver LJ said –

“It is that parties should be encouraged so far as possible to settle their disputes without resort to litigation and should not be discouraged by the knowledge that anything that is said in the course of such negotiations (and that includes, of course, as much the failure to reply to an offer as an actual reply) may be used to their prejudice in the course of the proceedings. They should, as it was expressed by Clauson J in Scott Paper Co v Drayton Paper Works Ltd (1927) 44 RPC 151 at 157, be encouraged freely and frankly to put their cards on the table.”

Thus, don’t make the mistake of seeking to have a without prejudice discussion with your employer until the appeal stage, viz: being at the very end of your appeal letter

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